Three Cheers for the Oklahoma Legislature

Both houses of the Oklahoma Legislature have passed a very strong pro-life bill, and all indications are that Gov. Mary Fallin will sign it into law. The Oklahoma bill provides an interesting twist on standard pro-life state legislation, which usually focuses on various gestationalcutoffs. Instead of trying to ban all abortions after a certain number of weeks or after the point at which a fetal heartbeat can be detected, Oklahoma seeks to revoke the medical licenses of all doctors who perform abortions. (The bill would not apply to abortions performed to save the mother’s life.)

There are three distinct reasons why this bill is noteworthy.

Firstly, there is the bill’s sheer breadth. The bill seeks to protect not merely unborn children after some morally arbitrary gestational benchmark, but instead covers virtually all unborn children in Oklahoma. Oklahoma is one of the reddest of all red states, and I respect its legislature’s audacity in taking a very aggressive stance to pursue such a noble cause.

Secondly, there is the issue of how the bill mechanically operates. While federal courts have already struck down six- and twelve-week abortion bans, the Oklahoma bill may well be the first to operate by regulating the state’s medical professional licensing. States enjoy something closely approximating plenary power over regulation of their medical professions, so, at minimum, this provides a novel legal approach for pro-life advocates when the bill-turned-law is inevitably challenged. (Further guidance may come from the U.S. Supreme Court, whose forthcoming decision this term on the landmark 2013 Texas pro-life law may chip away at Planned Parenthood v. Casey‘s “undue burden” standard.)

Thirdly—and most subtly, but perhaps most importantly—is the symbolic nature of Oklahoma’s bold defiance of federal judicial authority. While the legislation’s mechanical approach via medical profession regulation is indeed novel, there is not a particularly strong argument that such a de facto total abortion ban would survive a simple judicial application of Roe v. Wade and Planned Parenthood v. Casey. But here is the catch: Oklahoma legislators do not, and should not, care. The myth of judicial supremacy—under which the constitutional prognostications of a bare majority of the U.S. Supreme Court are equated with the Constitution itself and thus trigger Article VI’s Supremacy Clause—is both textually and structurally specious. To the extent many erroneously think such judicial supremacist sentiment is required by the landmark 1803 case of Marbury v. Madison, that is demonstrably false.

The legislators of the State of Oklahoma take an oath to (amongst other things) “support, obey, and defend the Constitution of the United States”—not to support, obey, and defend the Constitution as it is interpreted (or egregiously misinterpreted, as happened in Roe and Casey) by a bare majority of the U.S. Supreme Court. Such political tugs-of-wars between the federal government’s branches, and indeed as between federal and state governments, is how the ultimate question of who interprets the Constitution has historically been settled. There is nothing at all inherently wrong with passing legislation that violates current U.S. Supreme Court precedent, so long as fellow constitutional actors—here, Oklahoma state legislators—earnestly believe they are acting soundly within the confines of the Constitution as they independently construe it, in accordance with their oaths of office.

So, all in all, three cheers to the Oklahoma Legislature: one for protecting almost all of Oklahoma’s unborn children, two for the mechanical novelty of how the bill operates, and three for the bold rejection of the fallacious doctrine of judicial supremacy in the realm of constitutional interpretation. Here is hoping Gov. Fallin quickly signs the bill into law.